Sunday, November 20, 2016

Condition Creep

Supervised release conditions sometimes expand quietly and in small increments, while we are not paying close attention. Then one day, these conditions (which are not necessarily statutorily drawn) are accepted as commonplace restrictions on our clients' rights. Condition creep. Certainly, constitutional rights can be limited while one is on supervision or because of one's status as a felon or sex offender. But constitutional rights cannot be stripped away wholesale.

Pending before the Supreme Court is Packingham v. North Carolina. Cert was just granted October 28, so the case is neither fully briefed nor set for argument. Mr. Packingham, a North Carolina resident, was a convicted sex offender. Six years after his conviction, North Carolina made it a felony for registered sex offenders to access certain websites, including Facebook, YouTube, and the New York Times. This sex offender posted on Facebook, giving thanks to God for the dismissal of a traffic ticket, no doubt the sort of conduct state lawmakers sought to curtail. But he did not get away with his crime -- a vigilant internet Javert spotted the offending post and Mr. Packingham was convicted.

The issue before the Supreme Court is whether the law violates the First Amendment, both on its face and as applied to the petitioner. The cert petition discusses at length similar supervised release conditions, noting that several federal courts have rejected supervised release conditions that compromise constitutional rights. In fact, Packingham tracks issues that the Tenth Circuit addressed in United States v. Ullman, 788 F.3d 1260 (10th Cir. 2015).

Watch for condition creep, especially if your client has any sort of sex-related prior convictions and regardless of the nature of the current offense. See United States v. Martinez-Torres, 795 F.3d 1233 (10th Cir. 2015). So make the objections, and we will keep an eye on Packingham.